Wallis v. Staples , 223 Ga. 256 ( 1967 )

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223 Ga. 256 (1967) 154 S.E.2d 207
WALLIS, Chairman Mount Zion High School Trustees, et al.
v.
STAPLES, Member Carroll County Board of Education, et al.
23995.
Supreme Court of Georgia.
Argued March 14, 1967. Decided March 23, 1967.
C. C. Perkins, for appellants.

Tisinger & Tisinger, Peyton Hawes, Jr., Jones, Bird & Howell, Eugene T. Branch, for appellees.

NICHOLS, Justice.

The plaintiff filed a petition which as finally amended sought an injunction prohibiting the Carroll County Board of Education from complying with a resolution adopted by it ex parte pursuant to the Act of 1953 (Ga. L. 1953, Nov. Sess., p. 282; Code Ann. § 32-954), until a hearing was granted to plaintiff and others on the issue covered by such *257 resolution. The petition alleged a demand and refusal for such hearing, that the action taken was illegal and void, and that the plaintiff was without an adequate remedy at law. Demurrers were filed to the plaintiff's petition and upon a hearing thereon the trial court sustained seven grounds of general demurrer and dismissed the petition. It is from this judgment that the plaintiff appeals. Held:

1. Where a patron of a school district seeks to have reviewed an ex parte decision of a county board of education consolidating and re-organizing the schools in the school district seeking a hearing before the board, and the board refuses such request, the proper remedy is mandamus to require the board of education to provide a hearing and decision on the matter in controversy. See Mallard v. Warren, 222 Ga. 731 (152 SE2d 380).

2. Where plaintiffs have an adequate remedy at law by petition for mandamus equity is without jurisdiction of the case. See Nichols v. Board of Educ. of Richmond County, 180 Ga. 84 (178 S.E. 292), and citations.

3. The petition failed to set forth a cause of action in equity and was subject to the defendant's demurrer attacking it on such ground. Accordingly, the judgment of the trial court sustaining such demurrer and dismissing the petition was not error for any reason assigned, and in view of such decision the remaining grounds of demurrer need not be passed upon.

Judgment affirmed. All the Justices concur.